Copyright troll Righthaven achieves spectacular “fair use” loss

Righthaven set out to save newspapers by suing wildly. Instead, its campaign …

Whoops—in its bid to sue hundreds of bloggers, commentors, and website operators from posting even a few sentences from newspaper stories, the copyright zealots at Righthaven have just scored an own goal. Last Friday, a federal judge ruled in one of the company's many lawsuits, saying that even the complete republication of copyrighted newspaper content can be "fair use."

Righthaven has achieved national notoriety for its business model, which involves scouring the Web—including tiny blogs and nonprofits—for Las Vegas Review Journal and other newspaper stories. When it finds a match, Righthaven licenses the copyright from the cooperating newspaper and sues the article poster without warning for statutory damages of up to $150,000. In addition, it routinely demands that the poster's domain name be transferred to Righthaven.

The company's most controversial cases have involved posters who only used a small percentage of the original article, or instances where Righthaven sued the very sources who had provided the basic information for an article, then posted the result to their own website. But Righthaven has also gone after many sites that posted the complete text of a newspaper article, something far less likely to be seen as fair use.

That was the case with the Oregon-based Center for Intercultural Organizing (CIO), which Righthaven sued in August 2010 after the group posted a Review-Journal newspaper article on the deportation of illegal immigrants on its own website. The case must have seemed like a good fit for Righthaven; it had found someone taking the entire article! Defense lawyers contented themselves with arguing that the case should be heard in Nevada, and it didn't even bother to contest the issue on fair use grounds.

The offending post, from court documents

But federal judges have tremendous power over their cases, and on November 15, 2010, federal judge James Mahan on his own initiative issued a terse order. "The court hereby orders the plaintiff to show cause why this case should not be dismissed under the 17 U.S.C. § 107 Fair Use exception," he wrote.

At a hearing last week, the judge decided that CIO's use of the full article text was, in fact, a fair use under the "four-factor test" enshrined in law.

Steve Green, a reporter at the competing Las Vegas Sun newspaper, attended the hearing. Judge Mahan told both sides that the purpose of copyright law was to encourage creativity and to disseminate public access to information, so long as that did not unfairly hinder the market for the original story. In this case, Mahan said that the tiny Oregon nonprofit had essentially zero overlap between the readers of its website and the readers of the Review-Journal. In addition, the effect on the "market" for the work is unclear, since Righthaven is solely using the copyright to prosecute a lawsuit, not to defend its news operations (it has none).

The reposted article also fit within CIO's nonprofit educational mission, and the judge said that it was largely informational in nature, rather than creative.

The judge also blasted Righthaven for not notifying groups like CIO before filing a federal lawsuit; most would no doubt remove or limit the offending material if notified by the copyright holder.

As Green noted in a follow-up piece, the result here is almost comical: Righthaven goes to war in the name of tough copyright enforcement and winds up with a ruling that complete republication by some nonprofits falls under the scope of fair use. "Some 250 Righthaven lawsuits later, Righthaven's startling achievement is that newspapers now have less—not more—protection from copyright infringers," Green concluded.

The ruling isn't as "out there" as it might initially sound; courts have long recognized various complete reuses as "fair." As lawyer Jason Schultz pointed out in an amicus brief to the court, this was true even of the famous Sony decision that legalized the VCR in America; complete shows could be copied and it was "fair."

The Electronic Frontier Foundation rejoiced at the "persuasive precedent" the case will set, though Righthaven told the judge it would appeal.